State of New South Wales v GB by his Tutor

1. [1]

   The plaintiff, the State of New South Wales, (“the State”), brings proceedings against GB, the defendant, pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”), for an Interim Supervision Order with a view to an Extended Supervision Order (“ESO”) of 3 years on specific conditions.

2. [2]

   The defendant opposes the imposition of any ESO.

3. [3]

   The Summons seeking these orders was filed on 8 July 2020. The defendant is due for release at midnight tonight, 17 July 2020.

4. [4]

   Due to this very late filing, the defendant has had to compress both his time to give instructions to his legal representatives and their time to prepare his defence of this application. The quality of the written submissions provided by senior counsel for the defendant, and the relevance and succinctness of the material provided by the defendant for me to consider, is indeed commendable given the preposterously short timeframe within which this had to be prepared.

5. [5]

   Were it not for the quality of that material, I would have significant misgivings about the extent to which there has been procedural fairness allowed to the defendant. It is of significant concern to me as a Judge of this Court that orders seeking to criminalise and curtail the movements and rights of an 18-year-old man, in custody for offending as a minor, who has significant mental illness and cognitive impairments, are sought on such a last minute basis.

The Legislation

1. [6]

   The requirements for making an ESO are set out in ss 20 and 21 of the Act:

2. [7]

   Section 4 of the Act defines a serious terrorism offence as “an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment.”

3. [8]

   Sections 6 and 7 deal with the persons to whom the Act can apply. Section 7 defines an “eligible offender” as:

4. [9]

   Section 6 defines the words “serving a sentence of imprisonment”:

5. [10]

   The State says that for the purposes of s 20(c) of the Act, the defendant is a “convicted NSW terrorism activity offender” as defined in s 10 of the Act, relevantly as follows:

6. [11]

   Section 100.1 of the Criminal Code (Cth) defines “terrorist act” as:

7. [12]

   Section 102.1 of the Criminal Code defines “terrorist organisation” as follows:

8. [13]

   Sections 24 and 27 of the Act deal with the making of an interim order. Relevantly those sections provide:

A summary of the positions taken by the parties

1. [14]

   The defendant does not take issue with the fact that he satisfies ss 4, 6, 7 and 20(a), (b) and (c) of the Act. Satisfaction of s 20(c) is reached by the fact that the defendant is “a convicted terrorist offender” as defined in s 10(1)(c)(i)-(ii), despite never having committed a terrorist offence. As described by senior counsel for the defendant, Mr Johnston SC, satisfaction of s 10(1)(c) is conceded, not because the defendant did anything for an ideological purpose but that it gets across the “bare line”. The concession is sufficient to put to one side any jurisdictional argument. There is thus a technical satisfaction of the requirements of s 20(c). Unlike the High Risk Offender legislation, there is no index offence required to have been previously committed that is of the same nature of the risk to be assessed for the application.

2. [15]

   The defendant takes significant issue with the assertion that s 20(d) can be satisfied, submitting that even assuming the State’s material is fully accepted, this Court would not be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order.

3. [16]

   It is well explained in both the written and oral submissions of the defendant as to why that position has been taken.

4. [17]

   The focus of what follows is to what extent the 2 volumes of evidence tendered by the State addressing the matters to be taken into account under s 25(3) of the Act and any other relevant matters, substantiate that risk.

5. [18]

   As was acknowledged by Mr McHugh SC on behalf of the State, some of that material pulls in different directions. Mr McHugh submitted however that there was a sufficient basis to be satisfied under s 20(d) particularly given the defendant’s vulnerability to influence, known associations with proven terrorist links and behaviours demonstrated, particularly when not taking his medication and not supervised.

6. [19]

   As succinctly put by Mr Johnston SC on behalf of the defendant, the fact that supervision might be “beneficial” for the defendant, protective of the community against the defendant’s potential offending generally, or even reducing the risk of violent offending, is not relevant and is certainly not decisive. The risk considered must be the risk of committing a serious terrorism offence as defined in Part 5.3 of the Criminal Code, and that risk must be one that is unacceptable and one that arises if the defendant is not kept under supervision under the order. The evidence does not rise to that level. The issue must not be resolved by mere speculation, even at the interim application stage.

The principles articulated in the case law

1. [20]

   In State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [29], the Court of Appeal (comprising Basten, Macfarlan and Leeming JA) provided the following helpful guidance in relation to s 20(d) of the Act:

2. [21]

   Useful statements by this Court addressing unacceptable risk were set out in State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008 at [24]-[26] by N Adams J:

The evidence

1. [22]

   The State relied on the following evidence:

   1. (1)

      Affidavit of Patrick Mullane affirmed 8 July 2020 together with annexures and exhibit PM-1 referred to in that affidavit;

   2. (2)

      Affidavit of John Walke sworn 9 July 2020;

   3. (3)

      Affidavit of Rhys Reynes affirmed 10 July 2020;

   4. (4)

      Affidavit of Gabriel Assaad sworn 10 July 2020;

   5. (5)

      Affidavit of Joshua Patch affirmed 11 July 2020 together with exhibit JP-1;

   6. (6)

      Affidavit of Patrick Mullane affirmed 13 July 2020 together with annexures and exhibit PM-2.

2. [23]

   The defendant read an affidavit of Todd Davis affirmed 14 July 2020 and an affidavit of the defendant’s solicitor, Hayley Le, affirmed 14 July 2020. I also note that a Consent to Act as Tutor and accompanying affidavit of XXXXXXXX affirmed 13 July 2020 was filed on 13 July 2020. This position is reflective of the fact that the defendant has both a guardianship and a financial management order in place and the views of those who act for him that he requires a tutor for the purposes of defending the proceedings brought by the State against him.

The defendant’s personal circumstances and relevant history

1. [24]

   The following summary has been extracted from the written submissions of the State:

2. [25]

   Without any criticism, I observe that the focus of this summary is upon the defendant’s history of offending and conduct the focus of this application. Some of that conduct is listed under the heading: “incidents in custody related to the defendant’s violent extremism”, a conclusionary heading I consider to be without real basis and contrary to other evidence, in particular, the assessments by psychiatrists and psychologists. I add to those important matters, other important matters, in particular the nature of the defendant’s psychiatric diagnoses, the timing and nature of the flare ups of florid illness and the orders and arrangements made that reflect the extent of the defendant’s mental illness and his cognitive disabilities.

3. [26]

   On 25 July 2017, Dr Joanne Shannon consultant forensic psychiatrist wrote a letter referring the defendant to Dr Kasinathan at Austinmer Adolescent Unit in which she noted that the defendant presented as:

4. [27]

   On 1 August 2017 the defendant was admitted to Austinmer Adolescent Unit for five weeks. During that period he was diagnosed as having schizophrenia, a form of psychosis, post-traumatic stress disorder and conduct disorder.

5. [28]

   On 4 June 2018 an application was made to the Mental Health Review Tribunal for a Forensic Community Treatment Order. That order was made on 6 June 2018 and in place for six months.

6. [29]

   In September 2018 the defendant was diagnosed by Ms Porter, psychologist, with what was described as a “mild intellectual disability” that places him, via the Wechsler Adult Intelligence Test in the tenth percentile for peers of his age.

7. [30]

   On 19 February 2019 the defendant was admitted again to Austinmer Adolescent Unit due to his risk of self-harm and harm to others in Cobham Juvenile Justice Centre where he was residing at the time. It was noted that on presentation to the unit he displayed hypervigilance, pacing and distractibility. He reported thoughts of self-harm and Dr Kasinathan noted:

8. [31]

   On 14 November 2019 a VERA – 2R Indicators Form was completed on interview of the defendant. The overall assessment, having evaluated various indicators, concluded potential “risk judgments” on overall categories of “low”, “low-moderate”, “moderate”, “moderate- high”, or “high” concluded that the defendant’s risk was “moderate”. This overall conclusion is the same as that reached by Dr Singh in May 2020 as stated in her report.

9. [32]

   In March 2020 it is reported that the defendant ceased his oral antipsychotic medications due to unbearable side-effects which comprised, amongst other things, faecal incontinence, but he continued to receive his depot medication. [37] At this point he relapsed into illicit drug use and started to associate with antisocial peers.

10. [33]

    On 1 April 2020, having been re-committed to Cobham Youth Detention Centre the defendant tied a shirt around his neck, stated he wanted to kill himself, ran towards a Youth Justice officer and attempted to punch him, and was later observed to tie his track pants around his neck, then became exhausted and fell asleep. Later when directed to get dressed for transfer to another detention centre, he spat on the officer.

11. [34]

    On 4 April 2020 the defendant disclosed to staff that he was “hearing six voices and the dogs barking again but this time he could see things … people killing each other with knives.” He asked for medication which was dispensed by the nurse.

12. [35]

    On 7 April 2020 the defendant was transferred to Corrective Services NSW custody apparently pursuant to an order under s 28 of the Children (Detention Centres) Act 1987 (NSW). The submission to the Commissioner which seems to have underpinned this transfer, authored by Ms Geddes, Manager, Young Adult Offender Programs, dated 2 April 2020 states, amongst other things, that the defendant appeared to be “highly volatile and presents as a risk to himself, other detainees and staff. He has an intellectual disability, a personality disorder, suffers a PTSD type disorder, is mentally unstable, has schizophrenia and a conduct disorder.” She then stated:

13. [36]

    On 29 April 2020 it is recorded that the defendant was engaging in self-harm and making threats to staff.

14. [37]

    On 6 May 2020 the defendant told Community Corrections that he did not take his medication because he “felt like a zombie, drooling and experiencing incontinence” and reported that he attempted to seek assistance, including advising Ahmed, (which he confirmed), however he was not being helped”. Youth Justice was aware that he was experiencing faecal incontinence. [38]

15. [38]

    On 8 May 2020 the defendant was assessed by Dr Singh.

16. [39]

    On 12 May 2020 the defendant was placed in the Acute Crisis Management Unit at Long Bay Hospital.

17. [40]

    On 16 May 2020 the defendant was reported as having auditory hallucinations and engaged in self-harm.

18. [41]

    On 18 May 2020 Marcelle Jordan prepared a report stating the defendant’s “recent period of 12 weeks parole was his most successful in the community to date.” The report noted that GB’s behaviour began to deteriorate after an altercation at rugby league.

19. [42]

    On 21 May 2020 the defendant asked to be transferred to the Forensic Hospital because “he feels safe there.” He also reported the medication was “not helping” him. He engaged in further acts of self-harm in the following days. [39]

20. [43]

    On 28 May 2020 the defendant was placed in the Acute Crisis Management Unit and the following day told staff he was “pleased” about his placement. [40]

21. [44]

    On 4 June 2020 the defendant attended a hearing before the Mental Health Review Tribunal. He refused to have any legal assistance. The Tribunal considered whether he should be placed on a Forensic Community Treatment Order pursuant to s 67 of the Mental Health (Forensic Provisions) Act 1990 (NSW). On 19 June 2020 he was placed on a Forensic Community Treatment Order for a period of 12 months. That will be converted to a CTO if released from custody, whether under an ESO or not.

22. [45]

    Between 19 and 24 June 2020 the defendant engaged in further acts of self-harm.

23. [46]

    On 22 June 2020 the defendant told staff that he has issues with his medication and is struggling with it. He later tried to cut his face with a piece of dry paint and tried to insert a piece of flooring into his penis.

24. [47]

    On 24 June 2020 the defendant was observed trying to swallow a plastic bag, a paper spoon, a teabag and head-butted a wall.

The 2 pages of notes found on 15 June 2020 in GB’s cell

1. [48]

   Contrary to the impression that may be given by the orderly list set out in [66] of the State’s written submissions, the two pages of notes found during the cell search on 15 June 2020 comprised a scribbled, disorganised collection of messy, childish handwriting with scribbled crossed out notes regarding sums of money as well as lists of drugs noted as “ball of gear”, “2 ounces of pot”, “ball of ice”,” ball of MDMA”, “ball of Coke”. The handwriting is untidy and written in various directions with a lot of scribbling and crossing out.

2. [49]

   There is no evidence before me that the handwriting belongs to the defendant. The State submitted that I should infer that it was the defendant’s handwriting and that he had written the note. At the least it was submitted that I should infer that he was in possession of the note and had in effect knowledge of what was in it.

3. [50]

   The evidence as to the discovery of the note comes from a Correctional Officer, Mr Assad, who says that he carried out a cell search as directed on 15 June 2020: “GB was occupying the cell at the time. As I approached GB I saw that he had scrunched up handwritten notes in the cell. It appeared to me that GB had been in possession of these notes inside his cell. I said words to the effect ‘What are those papers?’. I do not recall what GB said in response.”

4. [51]

   Even taking this evidence at its highest, I have real doubts about whether I should draw either inference suggested by the State. There is some basis for inferring the latter suggested inference given the apparent location of the notes in his cell – which I am told is a one-out cell, but no valid basis in my view for inferring the former.

Section 25(3) mandatory factors to consider

1. [52]

   Division 2.4 of the Act sets out the requirements for determination of an application for an ESO. Section 25(1) provides that the Court can determine an application by making the order or dismissing the application.

2. [53]

   Critically, s 25(2) provides that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Supreme Court.

3. [54]

   Section 25(3) sets out the matters to which the Court must have regard. At this preliminary hearing stage some of the parameters have not yet been the subject of evidence, for example there are no reports from persons specifically appointed by the Court to conduct examinations of the offender.

4. [55]

   To the extent that there is material available addressing these mandatory matters, I will refer to it at the level of detail I consider critical to my determination of this application. Given the very short turnaround time required of this judgment, not every aspect of all the 1000 plus pages of material tendered can be the subject of reference or comment.

5. [56]

   Dr Singh psychiatrist assessed the defendant in May 2020. She determined after a thorough examination of his social and psychiatric history, and an analysis of the various domains and 34 risk indicators set out in the VERA-2R assessment tool, that the defendant is a moderate risk of engaging in, or inciting or assisting others to engage in, terrorist acts or violent extremism.

6. [57]

   Dr Singh stated that the VERA-2R is short form for “violent extremism risk assessment” tool which she explained was structurally developed for the individual assessment of the risk of those persons inspired by any beliefs, principles or philosophy that fall within the spectrum of ideologically motivated violence.

7. [58]

   Significantly Dr Singh, in completing the assessment tool, rated the defendant low on commitment to an ideology that justifies use of extreme violence, dehumanisation, rejection of social norms and values and hostility to the national identity.

8. [59]

   Relevantly, Dr Singh noted that despite the defendant’s apparent conversion to Islam in early 2016, he was unable to describe his religious beliefs at interview in any depth. He appeared not to understand what was meant by the question “What does it mean to be a practising Muslim” beyond the response that one had to attend Mosque and learn to be patient, peaceful and respectful. When prompted, he said that his Islamic mentor taught him about religion, taking him to Mosque and meeting good people.

9. [60]

   Dr Singh however noted that the defendant is highly susceptible to influence, control and indoctrination and seeks a sense of belonging, family and connectedness to peers and that he is susceptible to the manipulation of others. She also observed that his psychotic illness and attendant delusional beliefs also potentially intensify his vulnerability to violence.

10. [61]

    He did not identify any target for any proposed terrorist attack and when asked about ISIS stated that he did not even know about ISIS, “I didn’t know the Brothers for Life was about ISIS until court”; “I just wrote it on the wall in Juvey to threaten them YJ workers because they hurt me and disrespected me”. He explained that the threat he made to blow up the Juvenile Justice office was because he was frustrated and angry and that “they call every day they ask stupid questions”. He also explained that stopping his medication and getting on the drugs made him more easily frustrated and quick to anger.

11. [62]

    Dr Singh took the view that the expressions by the defendant to commit acts of violent extremism were expressed when he felt angry, scared or emotionally dysregulated and he has not made any firm commitment to engage in acts of violent extremism.

12. [63]

    It is important to observe that Dr Singh was given a vast amount of material including the various events and threats described.

13. [64]

    Dr Singh also offered the view that on the available evidence the defendant does not appear to be a seeker or developer of violent extremist materials.

14. [65]

    Dr Singh noted various protective factors, including that the defendant had worked well with his theological mentor and participated in the ESP program against violent extremism. She also noted that his sisters are people who empower him to keep him out of trouble and love and support him.

15. [66]

    In her July 2020 supplementary report, Dr Singh concluded that the defendant’s VERA-2R assessment remained unchanged and stayed in the moderate range. She reached this view despite being aware of the note found in the defendant’s cell, listing weapons and drugs with monetary amounts.

16. [67]

    Dr Singh concluded that there was no evidence to support the defendant’s willingness to die for a cause or belief and that the statements he made about requesting transfer to Goulburn Supermax to be with Bassam Hamze (21 June 2020) was in the context of a heightened emotional state and a recent history of auditory hallucinations.

17. [68]

    Dr Andrew Ellis, psychiatrist, prepared a report for the Children’s Court in July 2018 in the context of an application to revoke the defendant’s parole. He expressly considered the 12 incidents of apparent extremist related conduct between February 2017 and 7 June 2018. Dr Ellis observed that the defendant did not know much about ISIS or terrorist groups associated with Islam. He stated that the defendant told him that he had made statements about ISIS and outlaw motorcycle gangs so the Juvenile Justice workers would “get scared and listen to me” and that he was “angry and wanted to scare people”. Dr Ellis also observed that the defendant showed a limited understanding of the Islamic faith.

18. [69]

    Dr Ellis concluded that the defendant met the diagnostic criteria for schizophrenia, substance use disorder and conduct disorder and that he then displayed a number of risk factors associated with future interpersonal violence.

19. [70]

    Dr Ellis recommended continuation of the depot medication and transfer of his FCTO to a Community Treatment Order, should he be released.

20. [71]

    Dr Ellis concluded however that the defendant did not share many of the characteristics associated with terrorist related violence, and reached a conclusion (not dissimilar to that of Dr Singh, although her conclusion was some years later in 2020), that the defendant used terror related imagery and statements most likely related to his anger at staff and relative lack of power in the situation he finds himself in.

21. [72]

    Dr Kasinathan, psychiatrist conducted a risk assessment as part of a Mental Health Progress Report by the Adolescent Mental Health Unit Treatment team in July 2019. He recorded a number of observations about the defendant including the following:

22. [73]

    Dr Kasinathan also took the view at the time of assessment that the defendant’s history of impulsivity, irresponsibility, irritability and aggression had improved over the last 5 months during which he was engaged with pro social supports.

23. [74]

    Steven Barracosa, psychologist, assessed the defendant and prepared a report in November 2019. He noted improvements in the defendant while he resided at the Forensic Hospital and maintenance of those improvements, with no more incidents of aggression and self-harm. He reported that the defendant wanted to renounce his Muslim beliefs:

24. [75]

    Mr Barracosa concluded:

25. [76]

    Mr Johnston SC tendered a VERA-2R Indicators Form dated 14 November 2019 that was commented upon by Mr Barracosa in his Report of 28 November 2019. Mr Barracosa carried out a comparison with the previous VERA-2R completed 12 months before, noting that the primary extremist violence risk factors that remain outstanding for GB are his susceptibility to influence, control or indoctrination as evidenced through his lack of a stable personal identity, as well as his history of antisocial and criminal behaviour and violent criminal history due to his prior criminal offending. It also noted that he has personal contact with violent extremists and a “network of family and friends involved in violent extremism”. That he telephoned an alleged extremist associate during his most recent brief period on parole is noted, as is his reduced ratings of “moderate” recorded in respect of a number of indicators that were previously considered more significant risk factors.

26. [77]

    A report prepared by Mr Bagley dated 7 July 2020 set out various support structures he recommended which included face-to-face contact, weekly at a minimum, encouragement to seek employment and maintenance and engagement with his FCTO which would be converted to a CTO if released from custody. Mr Bagley identified a number of other matters (that underpin the proposed package of ESO conditions) including a schedule of movements that he noted as “necessary to manage the defendant’s identified risk factors” and that he needs to have electronic monitoring to ensure that he adheres to a schedule of movements. Interestingly a number of the matters referred to by Mr Bagley are directed to mitigating the “risks of any acts of violence” being committed by the defendant which in my view underpins the problem with the State’s patriarchal approach to this application, rather than a real identified risk that the defendant will commit a terrorism offence as defined.

27. [78]

    One matter Mr Bagley raised is the need for the defendant to be prohibited from having a firearm or weapon. I note that this has now been accomplished by the orders made under ss 73 and 74 of the Firearms Act 1996 (NSW) and the related powers of police to search for firearms in possession of a person subject to a Firearms Prohibition Order (under s 74A). Whilst the order was not tendered, I was informed in Court, and I accept, that the order was made on 15 July 2020.

28. [79]

    In addition, a Weapons Prohibition Order under s 33 of the Weapons Prohibition Act 1998 (NSW) was also made. My understanding of the effect of this order is that under s 34 of that Act, in the absence of proof to the contrary, any prohibited weapon found on any premises the defendant is occupying is deemed to be his.

29. [80]

    Mr Bagley concluded that the defendant can be reasonably and practicably managed in the community under a supervision order, if his mental health is stable.

30. [81]

    There is no suggestion that any part of the Corrective Services team that would manage the defendant in the community were I to make the ESO, would be a trained mental health care worker such as would be provided under a Community Treatment Order.

31. [82]

    As highlighted in the written submissions of the defendant, the initial threats of an extremist nature were said to have taken place between February 2017 and July 2018. This led to an application to revoke the defendant’s parole.

32. [83]

    The defendant gave evidence at the parole proceedings in July 2018 and some of the transcript is before me on this application. He denied any intention to commit a terrorist act and seemed to offer the position that he said those things without meaning them.

33. [84]

    Mr McHugh SC submitted that I should treat that evidence with circumspection and, in effect, not believe it. That is a difficult position to take when I did not have the opportunity of observing the defendant’s demeanour however the denying of any real intent is consistent with observations made by psychologists and psychiatrists who interviewed him between 2018 and as recently as May 2020.

34. [85]

    The defendant consented to participate in the ESP in August 2018. The report of his involvement in that, dated 20 April 2020, authored by Mr Donald indicates that the objective of the ESP is to reduce the risk of violent extremism in New South Wales by assisting individuals to disengage from behaviours and negative influences that may lead to violent extremism. He noted that the defendant was engaged in the program and prior to COVID-19 had weekly face-to-face engagement with his mentor as well as telephone contact.

35. [86]

    The author observed that he had known the defendant for many years and had seen progress with him since his discharge in January 2020. It is noted that the ESP mentoring program will continue to be available to the defendant without making an order under the Act.

36. [87]

    Mr Johnston submitted that there are a series of options available to the defendant in the community that might reduce the likelihood of him reoffending over time. There were six different categories of professional assistance identified:

37. [88]

    A primary consideration is the appropriately qualified expertise that would be provided locally for the defendant under the community treatment order which is in place for twelve months. The treatment plan appended to the affidavit of Todd Davis sworn 14 July 2020 indicates that there will be a psychiatric case manager or delegate to meet with once a month, that the defendant will be given three weekly depot injections, that the frequency and timing of appointments with the case manager and treating doctor or delegates may be changed by the psychiatric case manager or the treating psychiatrist and that he is by the order required to accept the treatment and/or medication as prescribed and/or varied by the treating psychiatrist or delegates. The defendant is required to comply with blood tests and relevant monitoring, and to provide the urine sample for urine drug screen more than once a month as requested by the case manager or his delegate. It is well known that under the Mental Health Act 2007 (NSW), if the defendant does not comply with the CTO he can be arrested and detained in a mental health facility.

38. [89]

    It is true there is a long list of medications only one of which is administered by depot, the others requiring a daily night-time dose. It is submitted by Mr Johnston SC that the failure to take medications, particularly if becoming mentally unwell, should not be criminalised and should be managed by the assistance and professional input of persons appropriately trained to deal with people who are mentally ill like the defendant.

39. [90]

    There was also reference to the positive and protective factors of his association with his family, and in particular his sisters who will be living near him in Merrylands upon his release.

40. [91]

    Mr Johnston SC conceded that the defendant has a poor history of compliance with parole and is unlikely to comply with an ISO or ESO. However the risk of non-compliance is not because of his risk of committing a serious terrorism offence but rather a risk of more generalised non-compliance or offending.

41. [92]

    Mr Johnston SC submitted that this Court should bear in mind the reality of relatively minor breaches of an ESO being dealt with by criminal punishment, namely, incarceration. An example of this problem was illustrated in a recent decision of Hamill J in State of New South Wales v Carr [2020] NSWSC 643.

42. [93]

    This Court should bear in mind, Mr Johnston SC submitted, that the defendant’s mental health issues increase the risk of failure to comply with the strict conditions proposed by the State, particularly given his difficulties outlined by Ms Hull, psychologist, as difficulty adjusting to changes in routine, problems with receptive language skills that make it difficult for him to understand and accept change, and his difficulty with expressing himself which leads to aggressive behaviour and self-injury.

43. [94]

    Mr Johnson SC emphasised that the strict regime proposed under the ESO sets him up for failure and further incarceration.

44. [95]

    Despite the defendant articulating statements that may imply that he has beliefs or commitments of an ideological, religious or political kind that support engaging or participating in terrorism activities, I maintain a significant reservation about whether those utterances have any ideology of any kind behind them.

45. [96]

    The State emphasised, as it should, that in addition to those utterances the defendant has as a matter of fact converted to Islam and was “converted” by two detainees, albeit as juveniles, who are known to be persons engaged in terrorist activity.

46. [97]

    That, combined with what has been repeatedly referred to as the defendant’s vulnerability to being manipulated, and “seeking contact with Mr Hamze” and having fairly long term contact with Damien Featherstone, the Court should hold concern about risk. There is an appropriately held significant concern by the State about the defendant’s association with Mr Featherstone, particularly as GB was arrested in the company of Mr Featherstone in possession of a loaded .357 calibre revolver in October 2017. Also in the foot well of the front passenger seat of the car they were in at this time was 10 rounds of ammunition appropriate for that revolver. I should also note the car was registered to Mr Featherstone’s partner, Ms Sebbens.

47. [98]

    Having said that however, whenever questioned by experienced personnel in an effort to find out whether the defendant actually holds an ideological basis for the things he has said, and the associations that he has, he is unable to articulate anything that betrays any ideology or belief that supports engaging or participating in terrorism activities and the professional assessments are to the effect that he probably does not hold any such beliefs.

48. [99]

    Dr Singh stated her opinion is that the defendant has not made any firm commitment to engage in acts of violent extremism and his historical statements were made at times when he was angry, scared and emotionally dysregulated.

49. [100]

    The more recent statements, as submitted by Mr Johnston SC were made in the context of significant mental health issues, including self-harm. His statement to “shoot up the juvenile justice office” was made without any ideological intent. The request to be transferred to “Goulburn Supermax" as he is a "terrorist” was made in the context of placement in an observation cell and self-harm.

50. [101]

    Countering those submissions is the State’s concern evidenced by various intelligence reports and documentation tendered on the application, that persons with whom the defendant has been in contact and has associated with, are significant terrorist concerns. This is a reasonable concern to have regarding Mr Featherstone and perhaps to a lesser extent WE, HG and DM. It seems however that all those nominated individuals are in custody for a long period due to other criminal offending and so the prospect of the defendant realistically being instructed or manipulated by them, seems somewhat remote. This does not remove risk of course, but it ameliorates it.

51. [102]

    There was frankly a level of obfuscation around the significance or otherwise of the defendant’s contact with Ms Sebbens when he was released from custody in September 2019. Ms Sebbbens is I understand the life partner of Mr Featherstone. There is evidence that suggests that the defendant’s girlfriend is actually Ms Sebbens’ sister. The State was unable to point to any evidence that indicated that Ms Sebbens herself is a terrorist risk or threat. The basis of objection to the defendant’s contact with her, which included a breach of parole by staying there overnight – was not that he was not permitted under his parole conditions to contact her at all. The complaint seems to be confined to her being the partner of Mr Featherstone. I do not consider, based on the evidence before me, that the defendant’s contact with Ms Sebbens in September 2019 was sinister in the circumstances, even combined with the fact that upon release he made a phone call to Mr Featherstone. The evidence states that the defendant did not discuss anything of note with Mr Featherstone. In 2018 he sent a letter to Mr Featherstone which was intercepted by Youth Justice officers that included the ambiguous line “when I get out you need me to do anything for you?”. Nothing can be drawn from that in my view.

52. [103]

    There is no evidence at all of any contact between GB and Bassam Hamze, although the State in their submissions repeated a claim made by GB to Dr Singh that he had had phone contact with Mr Hamze. I accept the defendant’s submission that this seems highly unlikely given that Mr Hamze has been in custody since before GB was born and is currently being held in the High Risk Management Unit at Goulburn. Mr Hamze is currently serving a life sentence and there is very little chance of any contact with GB ever occurring.

53. [104]

    In an Intelligence Report referring to an interview of GB by the Corrections Intelligence Group on 10 April 2020, GB was questioned about his religious beliefs. He stated that he was Muslim and that he converted approximately 3 to 4 years ago whilst in custody. When asked which sect he adhered to he stated that he followed “the popular one”, appearing not to know the difference between Shia and Sunni Islam. He indicated he did not practice the religion while in the community. It was noted by the interviewers that he exhibited very little knowledge around the religion. When asked about religious matters, he identified a particular person as a mentor and stated he had received bad religious advice from another identified person but declined to go into further detail.

54. [105]

    Under the heading “Local analysis”, the report refers to “external source information” noting that:

Am I satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order?

1. [106]

   Whilst I have dealt with the various arguments raised by the State and the defendant throughout this judgment, the State collected what they termed a summary of the factors underpinning the unacceptable risk of committing a serious terrorism offence if not supervised under an ESO that the defendant presents:

2. [107]

   I have borne in mind the matters set out in [17]-[20] of Annexure A to the State’s submissions as to the “lower hurdle” in place at the preliminary hearing stage and that the Court is not involved in weighing the supporting documentation or predicting the ultimate result.

3. [108]

   In my view the matters identified in [a]-[m] above go beyond what the evidence supports even accepting the evidence at its highest. The factors listed contain inferences that are in my view not available to draw and overstatements of the significance of the material presented in this application.

4. [109]

   Additionally, the State submitted that although the risk has been assessed to be moderate by those who applied the risk assessment tool, a risk assessment of moderate is significant and when regard is had to the above-mentioned factors, the consequences of such a risk materialising would be serious. A moderate risk of a serious consequence would be unacceptable.

5. [110]

   As noted in Mr Johnston SC’s submissions, in addition to what was set out in [29] of State of New South Wales v Naaman (No 2), which has been reproduced in [20] of this judgment, it is useful to note the Court of Appeal’s emphasis at [39], [63]-[66] and [69]-[70] of the need to establish a risk of violence done with the intention of advancing a political religious or ideological cause and the coercing or influencing by intimidation, a government or a section of the public.

6. [111]

   I accept the submission of Mr Johnston SC that there is a significant gap in the State’s application caused by the absence of any evidence to suggest that the defendant has the intention to commit a serious terrorism offence as defined by the Act. It is correct to observe that the defendant has never committed an act of terrorism and as discussed by Dr Singh and others including Dr Kasinathan, the defendant’s impugned statements are derived from his inability to control his emotions when his perceived needs in custody were not being met rather than evidencing any specific intent to commit a terrorism offence. Dr Ellis holds the same view.

7. [112]

   I accept the submissions of Mr Johnston SC that uttering statements capable of satisfying the test under subsections 10(1)( c )(i) and 10(1A)(iii) of the Act is very different from actually having an intention to commit an act of terrorism, including a relevant intention that the action is done or the threat is made with the intention of advancing a political religious or ideological cause.

8. [113]

   I am not satisfied that the evidence supports a finding that there is a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

Orders

1. [114]

   I make the following orders:

   1. (1)

      The summons is dismissed

   2. (2)

      The plaintiff is to pay the defendant’s costs